HARRISBURG – The Superior Court of Pennsylvania has upheld a Montgomery County trial court which dismissed a patient’s claims of negligence and medical malpractice against her physician, after a work injury led to her undergoing a spinal fusion procedure.
On Dec. 30, Superior Court judges Mary Jane Bowes, Megan McCarthy King and Dan Pellegrini affirmed a ruling from the Montgomery County Court of Common Pleas, in favor of Dr. Gene Z. Salkind and others, and against plaintiff Emma Wilmer.
Pellegrini authored the Court’s opinion.
“On May 4, 2014, Wilmer was injured at work, purportedly resulting in herniated discs in segments C5-C6 and C6-C7 of her spine. Wilmer then underwent an anterior cervical discectomy and fusion procedure on July 25, 2014, that was performed by Dr. Gene Salkind. Immediately after the procedure, Wilmer developed a stutter and pain in her throat when swallowing,” Pellegrini said.
“On July 29, 2014, Wilmer’s workers’ compensation insurance carrier filed with the Pennsylvania Department of Labor & Industry a utilization review request for ‘prospective review of recommended anterior cervical fusion at C5-6 and C6-7 with removal of plate at C4-5.’ During the review process, Dr. Salkind failed to respond to requests for documents sent by the utilization review organization (URO). On Sept. 30, 2014, the URO issued a finding that Dr. Salkind’s treatment of Wilmer was not reasonable or necessary under [state law], which compels such a finding where ‘the provider under review fails to mail records to the URO within 30 days of the date of the request of the records.”
Though Dr. Salkind petitioned for a review of that decision, the workers compensation judge found that the physician’s not appearing on four occasions made his review null and void, and dismissed the review petition.
Wilmer then filed suit against Dr. Salkind and other defendants in the Philadelphia County Court of Common Pleas, an action later transferred to Montgomery County. In the suit, Wilmer accused Salkind of “providing care below the standard required of physicians performing the spinal fusion procedure she underwent, causing her injuries.”
“Wilmer retained an expert witness, Dr. Jonas Gopez, a board-certified neurosurgeon. In his deposition, Dr. Gopez testified as to Wilmer’s speech and swallowing impairment following her spinal fusion procedure on July 25, 2014. He testified that in his opinion, ‘the surgery was not medically necessary or causally related to the May 4, 2014 work injury,” Pellegrini stated.
“Significantly, Dr. Gopez observed that the procedure performed by Dr. Salkind was ultimately addressing degenerative changes in Wilmer’s spine which had long predated the work injury she had in 2014. Dr. Gopez noted that Wilmer previously injured her back at work in 2008, requiring a spinal fusion surgery which was performed in 2009, as well as dozens of steroidal injections into her spine over the course of the following years. However, Dr. Gopez opined that Wilmer’s speech and swallowing difficulties, ‘in some way or form, must be [caused by the spinal fusion procedure in 2014 because]…she did not have [those symptoms] before, had the surgery, and developed it immediately afterward.”
During cross-examination, Dr. Gopez explained he examined Wilmer on two occasions – July 2, 2015, and April 14, 2016, – and both times, Dr. Gopez had been retained solely for the purpose of litigating workers’ compensation claims; he was not retained at those times to give an opinion on whether the surgery was medically necessary to treat Wilmer’s work-related injury on May 4, 2014, and the extent to which Wilmer had the ability to return to work.
As such, Dr. Gopez did not evaluate Wilmer for the purpose of opining for a prospective malpractice action as to the standard of care or whether Dr. Salkind had deviated from that standard.
Dr. Salkind then filed a motion in limine to preclude the testimony of Dr. Gopez, on the ground that his opinions did not relate to the standard of care applicable in a medical malpractice action. Wilmer, in turn, filed an answer to Dr. Salkind’s motion in limine, as well as a cross-motion to preclude Dr. Salkind from testifying that the treatment he rendered was reasonable and necessary.
Wilmer contended that Dr. Salkind was “collaterally estopped from disputing issues which the workers’ compensation judge had already resolved on the merits.”
However, the trial court granted Dr. Salkind’s motion in limine and ruled further that it would treat the motion as a request for summary judgment based on Wilmer’s failure to present any expert testimony on the applicable standard of care – while at the same time, Wilmer’s cross-motion in limine was denied, and her complaint was dismissed with prejudice. Wilmer then appealed to the Superior Court.
On appeal, the first issue for the Court’s consideration was whether or not the summary judgment order should be vacated, because it was predicated on the trial court’s erroneous exclusion of testimony by her expert witness, Dr. Gopez.
Pellegrini and his colleagues found, as did the trial court, that Dr. Gopez did not provide any testimony in his deposition which established the applicable standard of care, for the spinal fusion procedure performed by Dr. Salkind.
“Although Dr. Gopez testified that in his opinion, the spinal fusion procedure was ‘not medically necessary or causally related to the May 4, 2014 work injury,’ he did so in the context of workers’ compensation proceedings concerning Wilmer’s work-related injury on that date. Dr. Gopez observed that the procedure performed by Dr. Salkind was intended to address degenerative changes in Wilmer’s spine which had long predated the more recent work injury she had in 2014. Nothing in Dr. Gopez’s testimony goes to whether the surgery was necessary for reasons other than the work-place accident on May 4, 2014,” Pellegrini stated.
“Moreover, Dr. Gopez agreed that when he evaluated Wilmer, he had not been retained to opine on Dr. Salkind’s alleged negligence or malpractice, and no opinions on the standard of care that would apply in the context of a negligence or medical malpractice action were ever given in his deposition testimony in the present case. Thus, Wilmer failed to raise a genuine issue of material fact as to necessary elements of her claims, and the trial court did not abuse its discretion or commit an error of law in granting summary judgment in favor of Dr. Salkind on the ground that Wilmer failed to carry her initial burden of proof.”
As to Wilmer’s second claim, the Superior Court found it both moot and not necessary to consider.
“Wilmer’s second claim is that the trial court erred in denying her cross-motion in limine to preclude Dr. Salkind from testifying as to the reasonableness and necessity of the subject medical procedure. According to Wilmer, Dr. Salkind is collaterally estopped from disputing those points because they had been previously adjudicated at the workers’ compensation proceedings,” Pellegrini concluded.
“It is unnecessary for us to reach the merits of this issue because it is moot. As discussed above, the trial court did not err in ruling that Wilmer failed to carry her initial burden of presenting expert testimony as to the standard of care and Dr. Salkind’s deviation from that standard. Our disposition in that regard would remain intact regardless of whether the trial court erred in ruling that Dr. Salkind would be able to testify at trial about whether the procedure was reasonable or necessary.”
Superior Court of Pennsylvania case 1220 EDA 2022
Montgomery County Court of Common Pleas case 2016-30036
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com